Case 2:17-cv-00932-JLR Document 74 Filed 04/11/18 Page 1 of 8
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`THE HONORABLE JAMES L. ROBART
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF WASHINGTON
`SEATTLE DIVISION
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` CASE NO. 2:17-cv-00932-JLR
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`JURY TRIAL DEMANDED
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`OPPOSITION TO DEFENDANTS’
`MOTION TO AMEND SCHEDULING
`ORDER
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`NOTE ON MOTION CALENDAR:
`APRIL 13, 2018
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`CYWEE GROUP LTD.,
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` Plaintiff,
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`HTC CORPORATION
`and
`HTC AMERICA, INC.,
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` Defendants.
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`CYWEE GROUP, LTD.’S OPPOSITION TO MOTION TO
`AMEND SCHEDULING ORDER
`CASE NO. 2:17-CV-932-JLR– 1
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`SHORE CHAN DEPUMPO LLP
`901 MAIN STREET, SUITE 3300
`DALLAS, TX 75202
`TELEPHONE: 214-593-9110
`
`

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`Case 2:17-cv-00932-JLR Document 74 Filed 04/11/18 Page 2 of 8
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`SHORE CHAN DEPUMPO LLP
`901 MAIN STREET, SUITE 3300
`DALLAS, TX 75202
`TELEPHONE: 214-593-9110
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`Plaintiff CyWee Group, Ltd. (“CyWee”) submits this Opposition to Defendants’ Motion to
`Amend Scheduling Order and in support thereof states as follows:
`Defendants HTC Corporation and HTC America, Inc. (collectively, “HTC”) ask the Court to
`delay numerous deadlines and unreasonably compress the pretrial schedule solely to enable HTC
`to serve a third-party complaint that appears to have no chance of success. Indeed, as shown in
`third-party defendant STMicroelectronics, Inc.’s (“STM, Inc.”) motion to dismiss, HTC seems to
`have no plausible claims, and its third-party claims should be dismissed.1 See Dkt. 64. HTC’s
`purported need for a schedule change is a problem of its own making—HTC had all the
`information that forms the basis of its third-party claims long before it appeared in this lawsuit,
`which has been pending for nearly a year. HTC should not be permitted to cite its own delays to
`justify failing to bring its third-party claims long before now. The Court should deny HTC’s
`Motion to Amend.
`ARGUMENT
`HTC’s Motion to Amend the scheduling order requires the Court’s consent, conditioned
`upon good cause. FED. R. CIV. P. 16(b)(4). The good cause inquiry focuses upon the movant’s
`diligence. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). HTC has
`not been diligent; the Court should therefore deny the Motion.
`A.
`Third-Party Defendants Need Not Participate in Claim Construction.
`HTC relies on a faulty justification for its alleged need to postpone various case deadlines—
`“to afford all third-party defendants the opportunity to participate in claim construction
`proceedings.” Dkt. 68 at 2.2 HTC’s proposed schedule amendments show that this is just an
`excuse because HTC requests until October 11, 2018 to serve the third-party defendants, but it
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`1 Although CyWee takes no position on the merits of STM Inc.’s motion, it does not disagree
`with the legal arguments presented therein.
`2 Page citations are to the ECF pagination, not the internal document page.
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`CYWEE GROUP, LTD.’S OPPOSITION TO MOTION TO
`AMEND SCHEDULING ORDER
`CASE NO. 2:17-CV-932-JLR– 2
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`Case 2:17-cv-00932-JLR Document 74 Filed 04/11/18 Page 3 of 8
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`proposes to complete all claim construction proceedings by September 21, 2018. Thus, even if
`the Court adopts HTC’s requested schedule, the unserved third-party defendants could not
`participate in claim construction.
`Nonetheless, accommodating third-party defendant participation in claim construction is
`unnecessary because those parties have not been sued for patent infringement. HTC brought
`causes of action against those defendants for contribution, indemnity, and consumer protection
`act violations. See Dkt. 43. Those parties’ interests in how the Court construes the claims of the
`patents-in-suit as between CyWee and HTC are adequately represented by the current parties.
`Although HTC claims “[c]ourts in this Circuit have found good cause in similar circumstances,”
`the circumstances in those cases were not “similar” at all. Dkt. 68 at 7. In both Acer,3 and Quanta
`Computers,4 the third-party defendants were accused of patent infringement. Here, the third-
`party defendants are not. HTC’s primary justification for postponing the current schedule is
`meritless.
`B.
`HTC Has Not Been Diligent.
`As HTC acknowledges, its own diligence or lack thereof is a primary consideration in
`determining whether to amend a schedule under Rule 16. Johnson v. Mammoth Recreations, Inc.,
`975 F.2d 604, 609 (9th Cir. 1992); see Dkt. 68 at 6 (citing same). For that reason, “good cause” to
`amend under Rule 16 can arise where the current schedule cannot be met despite the movant
`acting with all due diligence to meet the impending deadlines. Johnson, 975 F.2d at 609. But
`when the party seeking the extension has not been diligent, the Rule 16 inquiry “should end”
`without amending the scheduling order. Id.
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`3 U.S. Ethernet Innovations, LLC v. Acer, Inc., No. C 10-3724 CW, 2013 U.S. Dist. LEXIS
`113551, at *31 (N.D. Cal. Aug. 7, 2013).
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`4 Victor Co. of Japan, Ltd. v. Quanta Comp., Inc., No. C 06-0422 WHA, 2007 U.S. Dist. LEXIS
`21263 at *6-7 (N.D. Cal. Mar. 15, 2007).
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`CYWEE GROUP, LTD.’S OPPOSITION TO MOTION TO
`AMEND SCHEDULING ORDER
`CASE NO. 2:17-CV-932-JLR– 3
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`SHORE CHAN DEPUMPO LLP
`901 MAIN STREET, SUITE 3300
`DALLAS, TX 75202
`TELEPHONE: 214-593-9110
`
`

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`Case 2:17-cv-00932-JLR Document 74 Filed 04/11/18 Page 4 of 8
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`HTC’s motion focuses only upon its purported diligence after it decided to assert third party
`claims in this case. But whether HTC acted promptly in obtaining summonses, in retaining a
`company for foreign service of process, and in carrying out related actions is immaterial. The
`relevant question is: could HTC have filed its claims sooner than it did? HTC clearly did not
`exercise diligence by waiting until January 11, 2018—nearly seven months after this litigation
`began—to file its third-party claims. Dkt. 43.
`This case has been pending since June 16, 2017. HTC sought and obtained consent from
`CyWee for two extensions of its answer deadline, and it filed its first responsive pleading on
`October 26. Dkt. 18, 22. But long before its October 26 appearance in this litigation, HTC knew
`or should have known the facts underlying its claims against CyWee Motion Group Ltd.
`(“CyWee Motion”) and the various STMicroelectronics entities it has impleaded as third-party
`defendants. HTC also knew or should have known that most of the entities it would seek to
`corral as third-party defendants were foreign entities and would therefore have to be served via
`extraterritorial judicial process. HTC is certainly aware that service abroad can present
`difficulties and delays.
`HTC’s prior knowledge of its potential claims is clear because HTC’s claims stem from a
`contract it entered with CyWee Motion and STM in January 2013—more than five years ago.
`Dkt. 43, ¶¶ 24-34. Thus, HTC cannot deny that it had actual knowledge of the facts it alleges as
`the basis for its third-party complaint at the time CyWee filed this lawsuit.
`Upon being served on June 19, 2017,5 HTC could have taken at least three actions other than
`waiting until January 2018 to file third-party claims. First, HTC could have answered and
`impleaded CyWee Motion and the various STMicro entities at any time before its answer
`deadline. Second, HTC could have brought its third-party claims with its answer. Third, HTC
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`5 See Dkt. 6.
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`CYWEE GROUP, LTD.’S OPPOSITION TO MOTION TO
`AMEND SCHEDULING ORDER
`CASE NO. 2:17-CV-932-JLR– 4
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`SHORE CHAN DEPUMPO LLP
`901 MAIN STREET, SUITE 3300
`DALLAS, TX 75202
`TELEPHONE: 214-593-9110
`
`

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`Case 2:17-cv-00932-JLR Document 74 Filed 04/11/18 Page 5 of 8
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`could have investigated its claims against the various STMicro entities to ensure it would add
`only proper parties. See Dkt. 64. HTC did none of the three. Instead, it filed a motion to dismiss
`only the induced infringement claims that CyWee pleaded in its First Amended Complaint and
`did not answer the direct infringement causes of action CyWee pleaded. Compare Dkt. 35, with
`Dkt. 20, ¶¶ 26, 124. Indeed, even though HTC did not challenge the adequacy of CyWee’s direct
`infringement claims, it did not answer those claims until March 23, 2018, which was five months
`after HTC’s original extended answer date (by which time CyWee had filed a second amended
`complaint). See Dkt. 62. In the intervening months, HTC did nothing with respect to its third-
`party claims.
`Although HTC had all facts necessary to bring its third-party claims in its possession when
`CyWee filed this case, HTC sought and received nearly four additional months to file a
`responsive pleading, to evaluate CyWee’s claims, to investigate licensing issues, and to consider
`whether to bring third-party claims with its initial responsive pleading. HTC then waited an
`additional two and a half months to add third-party defendants to this lawsuit. See Dkt. 43. HTC
`did not act diligently.
`Even after filing the third-party complaint, HTC failed to diligently seek a schedule
`amendment. On the day after HTC filed its third-party complaint, it inquired whether CyWee
`would accept service for CyWee Motion. Dkt. 69, ¶ 4. But even though CyWee’s counsel stated
`it could not accept service for CyWee Motion, and HTC knew it would have to effectuate
`international service, HTC waited another seven weeks to engage an international process server
`and ten weeks before it sought Letters Rogatory for international service on CyWee Motion. Dkt.
`69, ¶¶ 4, 6. HTC has not diligently pursued its third-party claims, and it should not be permitted
`to grind this case to a halt as a result.
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`CYWEE GROUP, LTD.’S OPPOSITION TO MOTION TO
`AMEND SCHEDULING ORDER
`CASE NO. 2:17-CV-932-JLR– 5
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`SHORE CHAN DEPUMPO LLP
`901 MAIN STREET, SUITE 3300
`DALLAS, TX 75202
`TELEPHONE: 214-593-9110
`
`

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`Case 2:17-cv-00932-JLR Document 74 Filed 04/11/18 Page 6 of 8
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`C.
`CyWee Will Be Prejudiced If the Court Grants the Motion.
`Delaying claim construction proceedings will harm CyWee. The Court knows that in a patent
`case, the claim construction hearing is the most important pre-trial event. Once the Court issues a
`Markman order, the parties will be able to evaluate their positions based on the adjudicated legal
`definition of the claims, and the case is more likely to settle. Prior to such order, the settlement
`prospects are far less likely. CyWee’s patents are being infringed, which means delaying potential
`settlement compounds the harm it currently suffers. The parties have no need to delay claim
`construction to accommodate the third-parties, as CyWee demonstrated above. Therefore, at
`minimum, the Court should deny HTC’s Motion to Amend as applied to the claim construction
`deadlines.
`HTC’s proposed schedule further prejudices CyWee by shortening the amount of time for
`rebuttal expert reports. Under the original schedule, the parties had 28 days after initial expert
`reports to serve rebuttal reports. The new schedule forces CyWee to provide rebuttal reports just
`16 days after initial reports. This compression of the rebuttal report deadline provides insufficient
`time CyWee because HTC served more than 2,500 pages of invalidity contentions. CyWee expects
`that HTC’s expert report on invalidity will be extremely long, which will require a significant
`amount of time to rebut. Accordingly, CyWee respectfully requests that any schedule in the case
`allow the parties at least 28 days to serve rebuttal reports.
`CONCLUSION
`HTC has not shown the requisite diligence to alter the Court’s schedule, and there is no need
`to extend any current deadlines. HTC’s third-party claims are late, will have no impact on claim
`construction, and seem entirely meritless. The Court should deny the motion to amend.
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`CYWEE GROUP, LTD.’S OPPOSITION TO MOTION TO
`AMEND SCHEDULING ORDER
`CASE NO. 2:17-CV-932-JLR– 6
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`SHORE CHAN DEPUMPO LLP
`901 MAIN STREET, SUITE 3300
`DALLAS, TX 75202
`TELEPHONE: 214-593-9110
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`

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`Case 2:17-cv-00932-JLR Document 74 Filed 04/11/18 Page 7 of 8
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`Dated this 11th day of April, 2018.
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`Respectfully submitted,
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`/s/ Carmen E. Bremer
`Carmen E. Bremer, WSBA 47,565
`carmen.bremer@bremerlawgroup.com
`BREMER LAW GROUP PLLC
`1700 Seventh Avenue, Suite 2100
`Seattle, WA 98101
`T: (206) 357-8442
`F: (206) 858-9730
`
`David A. Lowe, WSBA 24,453
`Lowe@LoweGrahamJones.com
`Tim J. Billick, WSBA No. 46,690
`Billick@LoweGrahamJones.com
`LOWE GRAHAM JONES PLLC
`701 Fifth Avenue, Suite 4800
`Seattle, WA 98104
`T: (206) 381-3300
`F: (206) 381-3301
`
`Michael W. Shore* (mshore@shorechan.com)
`Alfonso G. Chan* (achan@shorechan.com)
`Christopher Evans* (cevans@shorechan.com)
`Ari B. Rafilson* (arafilson@shorechan.com)
`William D. Ellerman (wellerman@shorechan.com)
`Paul T. Beeler* (pbeeler@shorechan.com)
`SHORE CHAN DEPUMPO LLP
`901 Main Street, Suite 3300
`Dallas, Texas 75202
`T: (214) 593-9110
`F: (214) 593-9111
` Admitted pro hac vice
`
` *
`
`
`Attorneys for Plaintiff CyWee Group Ltd.
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`CYWEE GROUP, LTD.’S OPPOSITION TO MOTION TO
`AMEND SCHEDULING ORDER
`CASE NO. 2:17-CV-932-JLR– 7
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`SHORE CHAN DEPUMPO LLP
`901 MAIN STREET, SUITE 3300
`DALLAS, TX 75202
`TELEPHONE: 214-593-9110
`
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`Case 2:17-cv-00932-JLR Document 74 Filed 04/11/18 Page 8 of 8
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`CERTIFICATE OF SERVICE
`I hereby certify that on April 11, 2018, I presented this OPPOSITION TO MOTION TO
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`AMEND SCHEDULING ORDER. to the Clerk of the Court for filing and uploading to the
`CM/ECF system, which will send notification of such filing to all counsel of record.
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`Dated: April 11, 2018
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`/s/ Carmen E. Bremer
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`CYWEE GROUP, LTD.’S OPPOSITION TO MOTION TO
`AMEND SCHEDULING ORDER
`CASE NO. 2:17-CV-932-JLR– 8
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`SHORE CHAN DEPUMPO LLP
`901 MAIN STREET, SUITE 3300
`DALLAS, TX 75202
`TELEPHONE: 214-593-9110
`
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